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[2015] ACTSC 397
Supreme Court of the ACT
2015-12-07
Ashford AJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Plaintiff to pay the defendant's costs subject to any variation application by the defendant being made by 17 December 2015
NEGLIGENCE - Duty of care - Occupier of premises - Whether duty of care exists where bank has no control over an offender or his actions - Whether duty of care of occupier extends to taking steps to minimise likely harm.
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8
Sullivan v Moody (2001) [2001] HCA 59; 207 CLR 562
1. By further amended statement of claim filed (with leave) on 31 July 2013 the plaintiff claims damages of the defendant as a result of a claimed major depressive episode and chronic post traumatic stress disorder (PTSD) as a result of being a customer in the defendant's premises at Fyshwick in the ACT on 1 February 2010, when an armed hold-up took place.
2. The plaintiff alleges that whilst standing at the counter in those premises and in the course of being served by a teller he was approached from behind by a male person, ('the offender'), holding a gun. The offender asked the teller to put money in his bag. The offender repeatedly threatened to kill the plaintiff. An employee of the defendant activated security screens at the counter of the premises and the offender discharged the gun. The plaintiff believed he was going to die.
3. The plaintiff claims the acts or omissions which constituted negligence on the part of the defendant were as follows:
1.1 Failing to take all reasonable precautions for the safety of the plaintiff;
1.2 Responding to the offender in a manner that materially increased the risk of injury to the plaintiff;
1.3 Failing to activate the security screens in a timely manner;
1.4 Allowing the threat posed by the offender to escalate in a manner that materially increased the risk of injury to the customers of the defendant, including the plaintiff;
1.5 Failing to adhere to the defendant's own policy for the management of holdups;
1.6 Failing to undertake any or adequate identification or assessment of the risk to the plaintiff's health associated with his attendance at the premises;
1.7 Failing to implement risk control strategies to minimise the risk of injury to the plaintiff;
1.8 Activating the security screens in circumstances where it was unsafe to do so;
1.9 Failing to train and/or instruct staff properly or at all as to how to respond to a hold-up;
1.10 Failing to implement an appropriate system for the handling by staff of hold-ups.
4. By amended defence to the amended statement of claim filed (with leave) on 8 September 2015 the defendant denies liability and the extent of any injury to the plaintiff as well as the quantum of any damages. The defendant also places the plaintiff's credit in issue.
5. In answer to subparagraph 1.9, the defendant says it admits it owed a duty of care as occupier to all lawful entrants to the premises to take reasonable care, but denies that it owed the plaintiff a duty of care as alleged and otherwise does not admit the balance of that subparagraph.
6. The defendant submits there is no duty of care as alleged owed by the defendant to customers of the bank, submitting that it comes down to a duty only being imposed in the circumstances alleged if there is something the bank could have done to control the offender.
7. The defendant submits foreseeability is not enough in a circumstance where the conduct of an offender is unpredictable and is insufficient to establish a duty of care.
8. In regard to causation, the defendant submits it was reasonably foreseeable staff and customers were exposed to a real danger of nervous shock before the screens were activated, but raises an issue as to the degree to whether the security screens going up or remaining down aggravated the plaintiff's condition of PTSD.
9. The plaintiff was born in 1969. He has two children from a former marriage: a son who has some learning difficulties; and a daughter. He presently lives in Sydney in a de facto relationship and has custody of his children on a week on/week off basis.
10. The plaintiff left school after Year 10 and thereafter engaged in various sales jobs with Bing Lee. He has an interest in motor vehicles and in about 1990 began work as a salesman for Newman's Motors for three or four years, then moving to McGrath Motors and to McLeod Ford. He then obtained a position at Tynan Motors selling MercedesBenz vehicles. After about four years he became assistant sales manager. He remained in that position for about two years and then became general sales manager for MercedesBenz products at Miranda.
11. His duties included allocation of products, building products, management and hiring of staff, budgets and reporting to dealer principals. He became acquainted with a Rod Fitzroy, and through him, with Graham Day, who had a dealership in Canberra. He discussed taking over that dealership, but decided not to go ahead. MercedesBenz later approached him and Rod Fitzroy about opening a MercedesBenz dealership in Canberra.
12. They entered into an arrangement and the plaintiff acquired some equity in the business and became a director and dealer principal. The business began operating in late 2006. Initially, the business was in profit. In 2007/2008, the effects of the GFC caused problems and the business had some tax difficulties of unpaid GST, which the plaintiff had to negotiate
13. On 1 February 2010, at around 1 pm, the plaintiff went to the Fyshwick branch of Westpac to bank a cheque. He filled in a deposit slip and then stood in line waiting to be served by a teller. He went to the counter. There was a female Indian teller serving him. He briefly noticed something flick past his right side. He heard a male behind him yelling, "Put the money in the bag. Put the money in the bag."
14. Initially, he thought this was a joke. He then realised it was a robbery. The teller stood back slightly. The plaintiff placed his hands on the counter. He turned his head to the right. He saw a tall man with a gun wearing a black balaclava. The gun was pointing towards him. He said the man was yelling, "I'll fucking kill him. Put the money in the bag. Money in the other drawer. Money out of the other drawer. I'll fucking kill him."
15. The plaintiff said to the teller, "Please give him the fucking money, please give him the fucking money." He said, "Look, mate, I'm just getting down on the floor." The man said, "Put the money in the bag. I'll fucking kill him." The plaintiff said, "Please don't kill me. I've got two kids."
17. The offender said, "I fucking warned you," and the gun was fired. The plaintiff thought he had been killed. He said the man ran off. The plaintiff got up and ran after the offender to see where he was going.
18. He went to the "meet and greet desk", where a female employee was on the phone to police. The plaintiff saw the registration number of the motor vehicle the offender got into and the description of the motor vehicle, which he gave to police. The plaintiff spoke to bank staff saying, "Who fucking pressed the button? Who does that? The guy's threatened to kill me and you pressed the fucking button."
19. Later that day, the plaintiff spoke to police and prepared and signed a statement. He did not return to work that day.
20. In crossexamination, he agreed the first thing he was aware of, as set out in his statement to police, was a bag go past his right shoulder into the teller's booth, and he heard a voice saying, "Put the money in the bag, put the money in the bag." The plaintiff said, "Oh fuck," and dipped his head and then looked around to his right side, with the palms of his hands placed on the counter. He perceived the gun to be pointed at him.
21. He turned his head to the left and saw another male customer lying on the floor. This was Mr Romano. He recorded in his statement that the offender was saying, "Put the money in the bag. Put the fucking money in the bag or I'll fucking shoot him. Someone is going to get shot. Put the money in the bag. Don't press the button. Give me the fucking money." The plaintiff thought he was the last person to lie on the floor. Another man, (Mr Tricolas), was on the floor.
22. The plaintiff's perception was that the gun was pointed at himself, not the teller. He was frightened of being shot before he got down on the ground, and whilst he was on the ground and in fear of his life he heard the offender say again, "I'll fucking shoot him. Put the money in the bag", and he said, "Please don't shoot me. I've got two kids." He believed he was going to die. The next thing he heard was the bang of the security shutters going up and the offender saying, "I fucking warned you," and then a shot was fired and the offender ran out of the bank.
23. The CCTV footage from the bank was played, and the CD tendered, (exhibit A.) The plaintiff was not present while the video was played, as he felt he would be distressed to see it again.
24. This depicted the plaintiff at the bottom righthand corner of the screen and another customer being served, with another one waiting. A man wearing a balaclava is seen to run in waving a gun.
25. The plaintiff was initially standing with his hands on the counter, then all three customers were on the floor. The gun appears to be pointed mainly at the plaintiff, but is also waved around generally. The screen then flies up, with the three men still on the floor. The gun is then fired and the gunman ran away. The plaintiff is then seen to get up and run after him.
26. GS was called by the defendant to give evidence. As at 1 February 2010 she was working at the Westpac Bank at Fyshwick. It was her first day at that branch as a graduate local business banker. At around 12 midday she was asked to help out in the teller's box. She thought there were four teller positions in that branch, and at the time of the robbery she and another lady, BL, were working as tellers.
27. GS was in teller position 1, to the right of BL, who was on position 3 or 4. A customer came to the teller box, and at that stage she said there was a lot of commotion. She noticed the offender in front of the fourth box furthest from her, closer to BL at the third box. She said the offender had a shotgun and was wearing a balaclava and he was yelling, "Don't push the button."
28. She said she and BL froze. BL looked at her, and she nodded her head at BL to indicate to her to give the offender what he wanted. She said she did this as she had been trained before BL and she had been there when BL was trained. GS said she had received training in October 2009 when she began working for the defendant. That training she described as having been given by a trainer, "Elide". She said Elide had told her the bank was covered in the case of a robbery and that she could give in to the demands of the offender. There was also a security button, and if she felt it was safe enough to push it, she could also do that. The extent of any training given to GS is an issue to which I shall return.
29. When she nodded to BL, she said BL proceeded to get the bag the offender had put through the window and to put money in it. She then pushed the bag towards the offender, who pushed it back saying, "Next box." She thought the gun was point at BL mostly. She did not recall anything said by the offender about giving him the money or any threats by him if the money wasn't handed over.
30. She said when he pushed the money back she was in the process of crouching, and BL was saying to her that he wanted more money. She said BL was suddenly crouching next to her and she decided it was safe enough to press the button as she was not directly in front of the offender and the gun and was not therefore as exposed. She therefore pressed the button and the screens went up. She did not remember any threats being made if money was not handed over nor threats against customers. She could not recall anything being said in training as to what should be done if threats were made to customers.
31. In crossexamination, she agreed that when all the commotion began she had observed a mobile phone on the bench where the screen would go if activated and she pushed that phone away. She agreed this was done by her after she heard him talk about not pressing the button. She determined to press the button after BL had handed over some money and had moved to another area to get more and to put it in the bag, and they were both crouched down.
32. BL was called by the defendant. As at 1 February 2010 she was employed by the defendant at the Fyshwick branch as a teller. She no longer works for the defendant, having gone off work after the robbery and not returning. She had difficulty in recalling the events of that day. She could recall a gun being pointed at her. She thought she was in teller box 3 and GS was in the teller box to her right side.
33. She remembered the offender saying if she did not give him the money he would shoot her. She said she was terrified and frozen. She put money in the bag and handed it to him. She thought him to be aggressive and screaming and that he wanted more money, saying to her, "Come on. Hurry up. Put the money in, otherwise I'll shoot you." She went to the next counter to put more money in, and that was when GS pressed the button.
34. She made a statement to police that day. She has not been able to bring herself to read it again. Her statement was tendered. It does not advance matters further.
35. Antoinette Aoun made a statement which was tendered. She was employed by the defendant and had worked for them for about three years. On 1 February 2010, she began her shift about 9 am, working that day as the meet and greet lady at the front desk of the premises, which is directly in front of the double glass automatic doors.
36. At about 12.45 pm she was at the desk. She saw a male person wearing a balaclava enter the bank and run past her desk towards the tellers. He was holding a firearm. When he got to the tellers' area she heard him screaming, "Hand over the cash. Give me the money. Hurry up or I'll shoot him." She then heard a man say, "Don't do anything else, just give me the fucking money."
37. She heard one of the male customers yelling, "Give him the fucking money. I've got two children." Ms Aoun went to get off her chair. As she did so, she heard the security shutters close and then heard a shot fired. She heard the offender scream, "Give me the cash," as the shutters went up, and he then fired the gun.
38. Malcolm Seakins also made a statement, which was tendered. He was the home finance manager at the defendant's Fyshwick branch as at 1 February 2010. At about 12.45 pm he was in his office, which is close to the teller windows. He caught a glimpse of someone running past his office door, wearing a balaclava and carrying something long in his hands.
39. He heard a man yelling, "Give me the fucking money. Give me the fucking money. Don't put the screens up. If you put the screens up, I'll shoot him. Open the other drawer." He heard a second male voice, which he assumed was a customer, say, "I've got two kids. I've got two kids. Give him the money." He thought the yelling to continue for 30 to 40 seconds, and he then heard the security screens go up. He said those screens are tested each morning and make a loud bang. After the screens went up, he heard a gunshot. He did not see the offender leave the bank. He saw two customers who were distressed and a third customer angrily questioning staff as to why they had put up the screens.
40. Andrew Black is the manager at the Fyshwick branch, and his statement was tendered. He had been at that branch for about 10 days. On 1 February 2010, he was at work. At about 12.45 pm he was in the office with another employee by the name of 'Joy'. He was not seated in a position where he could see into the bank, but Joy was seated opposite him. Joy said to him, "There goes a man with a gun." He saw her place her hand under the desk to activate the duress alarm, and he saw that this was activated by a small light at the base of the phone, which began flashing.
41. He heard shouting from inside the branch. He could not understand all the words, but he heard a male voice saying, "Just give him the money," and something about having two children. He then heard the hold-up screens activate and then a very loud bang, which he assumed was a gunshot.
42. Brenda Joy ChampnessVeillon, (Joy), made a statement which was tendered. She is employed by the defendant in administration duties. On 1 February 2010, at about 1 pm, she was at work and in her office with Andrew Black. She was seated at her desk facing into the bank. She saw a male run into the bank with a covering on his head. She heard a male voice shouting, "Give me the fucking money. Give me the money out of the drawer, that drawer," and a male voice saying, "I've got a gun."
43. She moved to the door of her office and saw a male person standing in front of teller 4 and continuing to yell, "Give me the money. Give me the money from the drawer, that drawer." She saw him raise his left arm and a gun barrel raise with his left hand, and it looked as if the gun was in both hands. She ran to her desk and activated the alarm.
44. She heard another male voice saying, "Give him the fucking money. Give him the money. I have two kids at home. He's got a gun." She recognised this voice as the man in the Mercedes dealership; that is, the plaintiff. She head the security screen go up and then the sound of a gun being fired. She saw the male run from the bank. She later heard the plaintiff saying, "Why did you put the screens up? You could have gotten me killed. I've got two children at home," and she described him as being very upset and very angry.
45. A statement of Con Tricolas was also tendered. He was in the defendant's premises as a customer on 1 February 2010. He began a transaction with one of the tellers at about 12.50 pm. He identified the plaintiff as being served by another teller on his right side. Two other male customers were in the bank. He heard a loud male voice from his right side saying loudly, "Don't close that fucking drawer. Don't close that fucking drawer."
46. From his side he saw a male with a covering over his head and holding something in his hands, standing to the right of the plaintiff. The male then said, "You two in the corner get down." Mr Tricolas and the second man who was behind him both lay on the floor. The offender then repeatedly said, "Don't close that shutter. Don't close that fucking shutter."
47. He heard the offender threaten the plaintiff saying, "Close that shutter and he will cop it," or, "Close that shutter and I will kill him." He heard the plaintiff say, "Just do what he says. Give him what he wants. I have two kids," and the offender say, "Don't you fucking do it." He then heard a very loud noise as the shutters went up, and then almost immediately a gunshot. He thought the offender had left. He heard the plaintiff saying, "Why did the shutters go up, for God sake? Why did you put the shutters up? I could have died. I have a family."
48. All these witnesses, that is, Mr Tricolas, Ms Aoun, Mr Seakins, Mr Black and Ms ChampnessVeillon, all gave accounts that are consistent with the plaintiff's evidence in that they repeat the offender having demanded money of the tellers and the plaintiff saying words to the effect of, "Give him the money. I've got two children," and the offender saying words to the effect of, "Don't activate the screens or I'll shoot him."
49. From viewing the CCTV footage, quite clearly the offender is wearing a balaclava, has a firearm and for a percentage of the time he is present in the bank he was pointing the firearm towards the direction of the plaintiff, more so than in the direction of the tellers, although he was clearly waving the gun around.
50. The evidence of the two tellers was that they did not hear the words spoken by the offender about threats being made about the plaintiff if the shutters were activated. That matter is addressed at a later stage of this judgment.
51. The plaintiff submits that the positive act of GS in activating the security screen during the robbery was a breach of duty on her part, for whose actions the defendant is vicariously liable as an employee of the defendant in the circumstances in which she did so. However, it is also submitted there was positive direct negligence on the part of those at Westpac, who were charged with the training and instructing of staff, including GS, as to the proper way in which to conduct themselves in the event of a robbery at the bank's premises which employed there as a teller, asking the question as to the appropriate approach, conduct and steps required of a bank officer when confronted with an offender in the circumstances in which this robbery occurred.
52. GS's evidence was to the effect that there was a lot of sound and yelling. She did not recall the offender threatening to shoot the plaintiff, or words of that kind, and she assumed there was a demand for money, but she could not recall exactly what was said. Her evidence was of training by a person named Elide, or something similar, although that person was never identified. GS said her training was on a computer. It is not known how long that training took or what it comprised.
53. The defendant did not call any person from Westpac to give such evidence, nor was documentary evidence produced which may have clarified that matter as to the precise training which was given to staff.
54. Documents under the heading Westpac Administration Manual were tendered dealing with site security: That is pages 322 to 448 of the plaintiff's tender bundle. These were provided by the defendant. It sets out procedures to be followed in the event of a hold-up. It notes Staff are to obey an offender's instructions. In a branch with fly up screens it notes the screens are to be activated by pressing the hold-up button on the teller's counter and to ensure that when doing so "you are not endangering your personal safety or the safety of others."
"When a staff members works in front of house, or a customer is directly threatened by an offender, the most senior officer (located on the secure side) is permitted to open the door where they believe that by not allowing the offender access to the secure area they might place the staff member or customer in danger of being harmed."
56. In respect of training history, (pages 386 to 394 of the plaintiff's tender bundle), these relate to GS. This lists various courses and procedures done by her and the date of such training. In the main, it appears to have been completed online in 2009/2010. No detail is provided as to the actual content of any course.
57. GS's evidence really came down to the proposition that she was aware the bank was covered if there was a robbery, that money could be handed over and also that there was a security button which staff could press if they felt it safe enough to do so. She said that when BL was next to her and both were crouching down, she had then decided it was safe enough to press the button, and she also thought that the gun had mostly been pointed towards BL.
58. GS could not recall any training as to what she should do in the event of threats made to customers. She could recall that there had been a mobile phone on the counter in the area where the screen rises up and that she had flicked that phone out of the way, saying she usually preferred not to have anything on the area because she was particularly careful with rules and that it was instinctive for her to do so.
59. She was asked in crossexamination whether it was a considered decision she made to move that phone and that she did so after she had heard the offender talking about not pressing the button, and she replied that was correct. It was submitted by plaintiff's counsel that pressing the button was not out of some fear reflex but a deliberated and thought out movement, which had as a precursor to it the removal of a phone after a directive from the offender not to press the button, where GS was being careful about following the rules, and thus if she had been so instructed what to do in such a situation she would have done what was required of her.
60. In that regard, I have reference to GS's statement to police which she made following the robbery, where she said the offender was yelling, "Don't press the button. Don't press the button." The defendant submits that GS was properly trained and the fact that she could not remember being shown the training manual or being told about the safety of customers does not mean it did not occur, and it is not so much the training that is important but whether staff act in a way that is consistent with good practice and that is what occurred in this case.
61. From the evidence it is clear GS was not, in fact, asked if she had ever seen the training manual. She was asked if anything had been said to her in training as to what to do in the event of threats being made to customers, and she said she did not recall. She said she did not observe any direct threats to customers. That was not the observation of others in the banking chamber, who all heard words to the effect of, "Don't press the button," and a threat of, "I will shoot him." The general consensus of those on the customer side was that the plaintiff was the person whom the offender was threatening to harm, and the CCTV shows the gun waving around mainly in the direction of the plaintiff.
62. The plaintiff called evidence of Tony Zalewski, risk management consultant, and his report of 17 February 2015 was tendered, along with annexures including WorkCover Guide 2003, in respect of armed hold-ups and cash handling, a publication from the Australian Institute of Criminology in respect of preventing armed robbery, and also the Australian Federal Police documents.
63. Dr Zalewski holds a PhD in systems of security, an MA in criminology, an LLB, an MA in criminal justice administration, and is very well qualified in matters involving security and safety. He gave evidence that in his opinion, in a financial environment such as banks, the risks of robbery is reasonably foreseeable, and hence he would expect appropriate training for staff to hopefully overcome the highlevel tension and risks associated with a spontaneous armed robbery.
64. He had the opportunity of seeing the CCTV footage of the robbery after his report was prepared. He adhered to the opinions expressed in his report and to the AFP document dealing with armed robbery, and again nothing in that report caused him to modify his views. In his opinion, as the safety screens were not activated immediately prior to or at the time of the offender entering the bank, bank staff should have complied with the demands made.
65. He noted the offender to have a clear advantage: that he was armed and he was making serious threats and had warned of the consequences of raising the screens. He would have expected cash to be provided as demanded by teller in a non-threatening manner and he concluded the failure of the defendant to ensure its employees adopted common industry practice exposed the plaintiff to a risk of injury.
66. Of course, BL was in the course of putting money in a bag for the offender, as he had demanded, and GS had indicated to her to do so. In crossexamination, he agreed that in such a circumstance there is always a risk of staff and customers being killed or injured, and that once such a robbery was under way there was no way to guarantee the safety of staff and customers.
67. He agreed that as a general rule the longer the offender was present the greater the risk. He agreed the training which should be provided to staff should include compliance with the demands of an offender, as far as possible in a nonaggressive way. He agreed with the proposition that auditory exclusion is a well known phenomenon. He agreed fly up screens are an important part of providing staff with a secure environment in which to work, with the proviso that it was safe and appropriate to do so at the time in respect of staff and of customers.
68. He said a common and recommended practice was to activate the screens as soon as an offender entered the bank and before engaging with customers, and the expectation was that the offender would flee rather than remain. On a review of the CCTV and other material presented to Dr Zalewski, he thought that if the screens had been activated as the bandit came through the door, or was one or two steps inside, then probably there would have been no robbery and no escalation of violence or aggression, but the fact that he got right to the window and money was being handed over and then the screens were activated, irrespective of whether he made threats against customers or not, the risk of injury substantially increased.
69. He opined that once the money had begun being handed over the fly up screen should not have been activated and to intervene in any way increased the risk of things getting out of hand. In crossexamination he was in agreement that staff always had an open direction to activate the security screen if they judged it safe to do so. He agreed it was in the bounds of that discretion vested in the employee to activate the screens if they were in fear for their lives, saying that it was a big call for staff and customers and that he was not in a position to say what was in someone's mind with respect to self-preservation.
70. He agreed the statistics in a robbery showed the purpose of an offender was to intimidate, frighten, threaten and instil fear of losing life and to get the money and run away as soon as possible. He agreed it was not unreasonable for both staff and customers to be in fear for their life. Nevertheless, he was critical of the screens being activated, as he thought it was an intervening act that could have escalated out of control. He also agreed that the longer a robbery took the more the potential of escalation of aggressive behaviour. He agreed the activation of the screens was the event which caused the offender to leave the bank premises.
71. The defendant called evidence of Peter Smith, security consultant with Ulong Risk Management. His report of 9 February 2015 was tendered. After objection, some paragraphs in his report were deleted. He had the benefit of seeing the CCTV footage of the robbery, and he had read Dr Zalewski's report and was in court while the evidence of Dr Zalewski and BL and GS was given.
72. He has not had any dealings on a professional level with banks, but was an armed robbery risk consultant for a credit union where he did risk assessment. He did not agree with the proposition that once an offender engaged with a teller the screens should not be activated, saying there was a discretionary approach to it when it was safe to do so, and he felt that GS had exercised that discretion.
73. In crossexamination, he was asked if it was just left to the teller to do what the teller thought, uninstructed and unassisted by education, then this was an exploitable weakness of the security system, and he replied that he assumed the tellers had been provided with instruction and followed procedures, and he agreed that if procedures had not been brought to the attention of the tellers it was a fundamental deficiency in the system.
74. He agreed a good practice was to follow the offender's instruction, and when activating the screen there was a requirement to ensure the teller was not endangering their personal safety or the safety of others. He agreed that antagonising an offender in the course of a robbery would be likely to endanger others in the vicinity and the forefront of the policy was the requirement of obedience to the offender's demands.
75. He did not agree it was not safe and appropriate to activate a pop-up screen in circumstances where an offender was in possession of a rifle and waving it around in the vicinity of customers in the bank, saying that in such a circumstance the theory was the offender would terminate the robbery and get away, which is what happened in the present case.
76. Of course, in the present case it seems the offender had threatened to shoot the plaintiff, and after the screens were activated did discharge the rifle, fortunately with no person being injured and the rifle being discharged into the roof. However, neither GS nor BL could recall any threats being made to the plaintiff. He conceded that staff disobeyed the offender by engaging the screens, but said that staff exercised their discretion, in his opinion.
77. Documentation produced by the defendant from their records relating to site security was produced. In relation to a robbery occurring, the instruction notes the staff to activate an alarm as soon as possible, without endangering personal safety or the safety of others. It also notes that staff should obey the offender's instructions, including providing the offender with money, and this was done.
78. In respect of the fly up screens, the instruction is to "Activate the screens when you are not endangering your personal safety or the safety of others". In the CCTV footage, it is noted the tellers worked in an area behind a screen, with openings between the customers and the tellers for the purposes of transacting business and placing an obvious barrier between the staff and customers in that no person could jump over the counter to gain entry to the teller area. Thus, the offender thrust a bag through the counter, but could not himself physically access the teller area. There is no evidence as to the composition of the structure, but it did provide some distance between staff and offender, which was not available to customers.
79. The plaintiff submits the critical instruction in any robbery is for staff to obey the offender's direction, as set out in all the literature referred to, including the WorkCover Manual, the AFP and the like, and accords with the evidence of the expert witnesses. In the present case, the plaintiff says the offender gave clear instructions in terms of not activating the screens or he would shoot the plaintiff, or words to that effect. That instruction was heard by a number of people, as I have noted, including Antoinette Aoun, Malcolm Seakins, Con Tricolas and also the plaintiff, all on the customer side of the screen.
80. GS, in her initial statement, recorded detail of the offender saying, "Don't press the button," and of the presence of the gun, but made no record of any threat to shoot the plaintiff, and she said in her evidence she did not hear such a threat. It was submitted by the defendant that GS may have experienced auditory exclusion, as suggested by Mr Smith in his report.
81. In reality, it seems GS does not remember much detail of the conversations during the robbery, which is probably explained by her understandable shock, fear and stress at the time and the noise generated by shouting. Mr Smith thought it not unreasonable to suggest an armed robbery event was an extreme stress situation which may result in the onset of auditory exclusion.
82. He also proceeded on an assumption the barrier between the tellers and the customers was bullet-resistant glass, which may have compromised GS's ability to hear the offender. Of course, I have no evidence as to what that barrier material was nor any evidence that it may have impeded sound. All the evidence from witnesses was of a lot of sound and noise and yelling. Obviously, GS heard some words shouted by the offender. She saw the gun, which she thought was directed towards BL.
83. In all the evidence given by GS as to her training by the bank in respect of security matters was vague. She stated she was particularly careful about rules, explaining why she flicked the mobile phone off the counter, but in respect of activating the security screen what she recalled was that she could activate it if she felt it was safe enough to do so, and that is what she did.
84. The primary instruction set out in all the manuals is to obey the offender. She heard him yelling, "Don't press the button," as recorded in her statement, but had decided, "We were safe enough to press the security button," and so she did. There is no doubt GS was extremely traumatised by the events in the bank, and she was concerned for the safety of BL and for herself.
85. BL was even more stressed and traumatised. It is understandable in the circumstances which occurred in the bank all of those involved were extremely frightened and anxious about the events which were unfolding. That is human nature and understandable when confronted with an aggressive offender waving a gun. In this matter, the offender was at the tellers' counter, and it was only then the tellers and the customers were aware he had entered the bank and was demanding money.
86. Dr Zalewski thought that if the screens had been activated as the offender entered the bank, and before engaging with others, then the expectation was he would flee the bank rather than proceed further. However, the plaintiff was aware of the offender only when the offender was at the counter and with a bag, and GS was not aware either until he was at the counter.
87. Joy ChampnessVeillon had seen the offender run into the bank, and she activated the silent alarm. Quite clearly in this situation there was no opportunity nor was it possible to activate the screens as the offender entered the bank or was one or two steps inside the bank. The staff did comply with the offender's demands insofar as BL began putting money in the bag and then moved to another teller's box to get more money, as the offender had directed her. I accept GS did not hear the offender threatening the plaintiff either from the general noise, her fear and upset and concern for BL, believing the gun to be mostly pointed towards BL.
88. In relation to the duty of care, the relevant statutory framework is contained in the Civil Law (Wrongs) Act 2002 (ACT) (the Act), and the relevant sections are sections 42, 43, 44, 45, 46 and 168. The plaintiff submits there is a duty of care on the part of the defendant, as occupier of the premises, to exercise reasonable care towards those lawfully on the premises, including employees and customers, and not to increase the risk of harm to those persons. I here set out sections 42, 43 and 44 of the Civil Law (Wrongs) Act:
Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
Precautions against risk - general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless -
the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
the risk was not insignificant; and
in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
the probability that the harm would happen if precautions were not taken;
the likely seriousness of the harm;
the burden of taken precautions to avoid the risk of harm;
the social utility of the activity creating the risk of harm.
Precautions against risk - other principles
In a proceeding in relation to liability for negligence -
89. The defendant submits there is no duty of care on the part of the defendant in a circumstance such as this, where the bank had no control over an offender or his actions, submitting foreseeability is not enough in circumstances where the conduct of an offender is unpredictable.
90. The plaintiff submits the duty of the defendant, as occupier of the bank premises, was a duty not to increase the risk of harm to persons lawfully on their premises, including employees and customers, and whether upon the arrival of an offender on the premises any duty to those persons remains and how that duty should be stated.
91. The plaintiff does not submit that in all the circumstances thereafter the bank would necessarily be liable for everything that then happened. The plaintiff was on the defendant's premises lawfully as a customer and an account holder in the course of transacting banking business by depositing a cheque into his account. The plaintiff submits that as an adjunct to the duty of the occupier, that is the bank, there was a duty imposed not to increase the risk of harm to persons such as the plaintiff lawfully on the premises.
92. What then gave rise to the initial risk of harm was the arrival of the uninvited offender and the question is whether there was then any duty to persons such as the plaintiff in that circumstance. The defendant submits it is the control by the bank over the offender that is relevant and critical and not control over the staff, and foreseeability alone is not sufficient to create a duty in circumstances where a third party is to be held responsible for the injury arising from the actions of an offender who is unpredictable.
93. In Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; [2000] 205 CLR 254 a tenant in the shopping centre walked across the carpark at around 10 pm. The shopping centre floodlights had been turned off by the landowner at about the time the shop closed, and there was no other direct lighting in the carpark. An employee of the tenant was attacked and badly injured as he walked across the carpark.
94. The High Court held the landowner's duty as an occupier of the land did not extend to taking reasonable care to prevent physical injury to the injured employee resulting from the criminal behaviour of third parties on that land. Of course, in Modbury the assailants were not employed nor occupiers of the land, and the court noted at 263:
The basis of the duty which, as occupier, the appellant owed in relation to the physical state or condition of the premises was control over, and knowledge of, the state of the premises. The appellant had no control over the behaviour of the men who attacked the first respondent, and no knowledge or forewarning of what they planned to do. In fact, nothing is known about them even now. For all that appears, they might have been desperate to obtain money, or interested only in brutality. The inference that they would have been deterred by lighting in the carpark is at least debatable. The men were not enticed to the carpark by the appellant. They were strangers to the parties.
The relevant question is whether the appellant assumed an obligation to care for the security of persons in the position of the first respondent by protecting them from attack by third parties.
96. In the present case, the defendant admits the duty was owed by the defendant to all lawful entrants, including the plaintiff, to take reasonable care to ensure they were not exposed to a reasonably foreseeable risk of harm. The risk of harm which arose was the entry into the bank premises of an uninvited offender.
97. A factual inquiry then arises as to whether the defendant is liable for the events thereafter. Reasonable care for the safety of others is directed to the foreseeable harm or damage. Whether there is a breach depends, inter alia, upon whether there was a failure to take precautions against the risk of harm. Whether there is a breach also depends upon the scope of the duty of care.
98. In RTA v Dederer [2007] HCA 42; 234 CLR 330 at 44, by reference to Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at 579 to 580 Gummow J said:
Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.
99. The defendant relies upon the approach of the High Court in Modbury, saying the defendant lacked control over the armed offender, and whilst criminal activity in a bank was foreseeable, it was unpredictable and therefore there was no duty to prevent harm to a third party such as the plaintiff from such criminal conduct.
100. In Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8, Basten JA, in referring to Modbury, cited Gleeson CJ to state:
It was "unnecessary to express a concluded opinion as to whether foreseeability and predicability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour".
The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched.
102. The limits of a potential duty in respect of safety of persons on premises open to the public were not explored.
103. In Lesandu, Mr Gonzalez approached the automatic sliding doors of the entrance to the Harvey Norman store in Blacktown. As he did so, two men rushed out of the store. He was knocked over, suffering injury. The men had attempted to obtain electrical goods using false ID papers. When this was discovered, they turned and fled. A member of staff had activated the locking mechanism to prevent their exit, but another employee, not realising this had happened, saw Mr Gonzalez at the door and released the locking device to allow him to enter, therefore decreasing their chance to knock Mr Gonzalez over. Basten JA noted there was no criteria identified which would have warranted the conclusion there was a special relationship between Mr Gonzalez and Lesandu.
104. Clearly the defendant, as occupier of the premises, owed a duty of care to the plaintiff, a lawful entrant on the premises, to take reasonable care for his safety. The question then to be answered, of course, is whether the risk of harm which eventuated was foreseeable, whether the risk was not insignificant and whether in the circumstances of what eventuated the defendant should have taken more precautions, as set out in section 43 of the Act, and was the risk of injury to the plaintiff due to the alleged failure to following training and protocol, one that could be addressed by the exercise of reasonable skill and care.
105. The defendant owed a duty both to its staff and to its customers. The extent of the duty must be extent to which the defendant had control of its premises and those in the premises. The injury to the plaintiff was a result of entry to the defendant's premises by the offender, over whom and whom actions the defendant had no control and no knowledge or forewarning of his actions.
106. The plaintiff agrees the defendant had no control over the offender, but says the actions of the defendant in the circumstances of an employee activating the security screen when expressly warned not to do so by the offender was the direct cause of the plaintiff's injuries. In that regard, the submission is that the bank staff had either not been properly trained by the defendant as to what to do in the circumstances such as occurred or else disregarded the instruction to cooperate with the offender and activated the security screen out of concern for the tellers' safety rather than of the plaintiff and other customers in the light of disobeying the offender's instruction not to activate the screen.
107. However, as I have stated, I accept GS did not hear the offender's threats directed to the plaintiff. In reference to Modbury, the defendant had a duty to provide a safe system of work and ensure reasonable care was taken, but had no duty to control the actions of the offender. From the evidence it seems GS did give some heed to her training. She remembered to keep the area where the screen activated clear. She nodded to BL, to indicate to her to give the offender the money. She could recall being told to give in to the demands of an offender, but there was a security button she could press if she felt it safe to do so.
108. She did not recall the offender saying anything about threatening to shoot the plaintiff if the screens were activated. This may be explained by the presence of auditory exclusion or the general noise and shouting accepted by both Mr Smith and Dr Zalewski as being commonplace in such a situation. She did recall the offender saying not to activate the screen, but she did not recall threats against the plaintiff.
109. She thought the gun was pointed at BL, as I have previously noted. Clearly, there was a lot of noise and confusion in the bank, and clearly all those present in the banking chamber were terrified. GS pressed the button activating the screen when both she and BL when in a crouching position, and she said she thought it safe to press the button, as was her training instruction.
110. As well, it was her perception the gun was mostly pointed at BL, although from CCTV footage this may not be quite correct. Clearly, the gun was being waved around. All these events happened within a very short compass. No guideline or training can guarantee the safety of any person during the course of an armed robbery such as occurred. The actions of the unlawful entrant could not be predicted, nor could the defendant have any control over his actions.
111. It is foreseeable as in the event of an armed robbery in a bank those involved as customers or staff may suffer psychological damage, and this clearly occurred not only to the plaintiff but also to BL and GS and to other customers. All the training manuals tendered and referred to by the security experts emphasise compliance with the offender's demands, and staff are directed to hand over money and avoid any conduct such as sudden movement to antagonise an offender.
112. However, training can never predict how the staff will react during a robbery, nor indeed how any other person will react. A robbery is unpredictable. The defendant had no knowledge or forewarning. Clearly, risks are minimised if certain procedures, including handing over money, are followed, but there must be some discretion vested in staff in such a tense situation. GS thought it safe to press the button, and consequently did so.
113. I do not find there was a breach of the duty owed by the defendant to the plaintiff and I find there was no duty to prevent harm from criminal activity by a third party. I am satisfied the bank took reasonable steps to hinder the robber, but could never control the actions of the offender. It was foreseeable there could be a robber, but this does not satisfy the duty.
114. Accordingly, I must find for the defendant on the question of liability. Nevertheless, in the event that I am wrong, it is necessary for me to make an assessment of the plaintiff's damage and look to the issue of causation. This is governed by sections 45 and 46 of the Act. It asks whether but for the breach the injury would have occurred. This requires the plaintiff to prove on the balance of probabilities without negligence on the part of the defendant the harm would not have occurred.
115. The plaintiff suffered PTSD, which is submitted began at the time the offender entered the premises, but was exacerbated or aggravated by the activation of the screens. The defendant says the risk of injury was the result of the unpredictable and criminal conduct of the offender, not by the actions of the defendant, and I have accepted that submission.
116. Causation is largely a question of fact by applying commonsense. In respect of the plaintiff's injury being worsened by the action of raising the screens, Mr Parsons noted the plaintiff to dissociate most markedly when he reported that after the screens went up he was watching from the ceiling and believing he was going to die as the offender had warned staff not to press the button, and his psychological terror was exacerbated by the offender yelling and then firing the gun. This satisfies the causation test.
117. Whilst training of bank staff can go some way in ensuring compliance, I am of the opinion, as previously noted, there is a discretion vested in bank staff. The plaintiff clearly was psychologically affected by the robbery both before and after the screen was activated, and he continues to receive treatment. He is treated by a psychiatrist and also by a psychologist. He has not returned to work. He remains in receipt of compensation payments.
118. In giving evidence before me, his affect was flat. He had difficulty at times in maintaining his composure, particularly under crossexamination, which was lengthy. He required frequent breaks. He lost his train of thought at times. He has clearly experienced a variety of difficulties in his personal life. He had access and custody disputes with his ex-partner, which whom he has two children, whom he loves dearly. His son has some learning difficulties, and this causes him extra problems at times.
119. His present partner gave evidence. She was an impressive witness, who has cared for the plaintiff, at times in stressful circumstances. She gave evidence of his depression and his lack of interest in everyday activities. It is clear the plaintiff has experienced difficulties in his business and his personal life prior to the robbery. There was evidence of his prior gregarious nature and his enthusiasm to succeed in business.
120. It appears the Mercedes dealership succeeded in volume, but was not profitable, and he entered into a discussion with Mr Fitzroy, his business partner, as to selling the business, although he did not want to sell it. He was aware of plans to sell it from 2009. Increasing debt caused him worry, and he neglected his tax returns. In about 2009, there was a GST liability outstanding to the tune of about $1.5 million.
121. It seems the plaintiff had seen a doctor some years prior to the robbery for counselling in respect of a relationship breakup, but it does not seem he had needed or sought any other psychological help prior to the robbery and to all intents and purposes he was leading a purposeful life.
122. I did not feel the plaintiff to be untruthful in his evidence, and it is clear his treating doctors have concerns for his psychological wellbeing. There was much evidence from those with whom he worked or for whom he has worked at various times, and all of that evidence was supportive of him in that he appeared to be an effective and well motivated man who clearly enjoyed his job and who clearly was somebody who socialised both in his private life and in his work dealings, and he was somebody in whom a great deal of confidence and respect was placed.
123. I have a great deal of sympathy for the plaintiff for the psychological damage the events of the robbery have inflicted upon him and also for the stress inflicted upon him from the lengthy trial and the ordeal that must have placed upon him.
124. Dr Chung is his treating psychiatrist, who has been treating him since May 2012 and sees him presently about once a fortnight. His reports of 16 May 2012, 11 July 2012, 14 July 2012, 27 March 2013, 12 November 2013, 18 July 2014, 30 July 2014 and 25 March were tendered. He also gave evidence by phone link-up.
125. In his opinion, the plaintiff suffered a major depressive disorder and PTSD. He recorded a history in accordance with the plaintiff's evidence. He noted the events of the man entering the bank wearing a balaclava with a rifle pointed towards the plaintiff. He noted the offender had repeated, "Put the money in the bag or I'll fucking kill him," and the plaintiff had got to the floor when the offender was requesting more money, with the offender saying, "Don't press the button or I'll fucking kill him."
126. The plaintiff told Dr Chung that he had said, "Don't kill me. I've got two kids," but the offender had then fired the rifle. The plaintiff told Dr Chung he thought he had been shot, then realised the offender had gone out, and the plaintiff had chased after him and got the motor vehicle numberplate. The history given largely accords with the evidence of the plaintiff and the other evidence previously noted.
127. The plaintiff reported he was very angry, asking the bank manager who had pressed the button. The following day, he had been referred for counselling by the defendant. The plaintiff became depressed almost immediately afterwards, and expressed diminished motivation. Dr Chung thought him to have significant symptoms of PTSD, which he set out in his reports. He noted flashbacks of the robbery and intrusive memories of the robbery. He noted the plaintiff to avoid going to the bank.
128. He noted in his reporting the bank robbery to be the aetiology of the depression and the PTSD, and he thought the action of the bank employee, even though the plaintiff's life had been threatened, was a major contributor to the disorder. He thought the plaintiff to require continuing support, medication, cognitive behaviour therapy, and he thought the prognosis guarded. He continues to review and treat the plaintiff. He thought the plaintiff to be making slow progress but to continue to have significant problems. In his last report, Dr Chung reconfirmed his opinion in relation to diagnosis and causation.
129. He is of the view the condition has become chronic. He thought ongoing treatment required and thought if the plaintiff did not improve then he would be unable to return to work.
130. In crossexamination, Dr Chung was asked if he was aware the plaintiff's business had made a small profit in 2006/2007 and thereafter had operated at a loss, and that in 2008/2009 there was a discussion about the sale of the business, and the plaintiff was unhappy about this.
131. Dr Chung was unaware of those matters, and he was not aware the plaintiff was then unsuccessfully trying to arrange finance to purchase the business. He agreed such a scenario could give rise to a depressive episode. However, he did not think it relevant to the diagnosis of PTSD. He agreed custody battles could cause some depression.
132. The plaintiff was initially treated by a psychologist, Mr Jeff Parsons, and then by Jason Mueller after Mr Parsons retired. Each of them prepared reports, which were tendered, and each of them gave evidence. In his initial report of February 2010 to the workers compensation insurer, Mr Parsons recorded the plaintiff to have been directly threatened by a gun when he was the victim of an armed hold-up in a bank on 1 February 2010.
133. He recorded the plaintiff to have separated from his wife and had two young children with whom he had regular access. He noted an episode of relationship counselling in 2009. He noted the plaintiff to be a part owner of a motor vehicle dealership from 2006. From the plaintiff's description of his responses post hold-up and as a direct result of a threat to his life the plaintiff experienced elevated anger, especially at bank staff, regular tears, increased use of tobacco and loss of motivation, energy and libido.
134. He thought the plaintiff to have developed anxiety and depression and an acute stress disorder which he gave increased risk of developing PTSD. He felt the plaintiff to require ongoing treatment. In later reporting, he opined the plaintiff to overt PTSD as a result of being exposed to the hold-up when his life was threatened and to also have a major depressive disorder. In response to the question of whether the plaintiff's psychological injuries were made worse by the activation of the security screen, he thought the point during the robbery when the plaintiff dissociated most markedly was when he heard the screens go up and he believed he was going to die. In his opinion, the intensity and longevity of the plaintiff's psychological problems are overwhelmingly a direct result of the bank's behaviour and the offender's response to that behaviour.
135. Thereafter, Jason Mueller took over the plaintiff's psychological treatment. In April 2012, the plaintiff reported he had some improvement in function, but remained angry with the bank. He thought the plaintiff to still suffer symptoms of PTSD and remained depressed and anxious. In his last reporting of April 2015 he noted the plaintiff to continue to suffer PTSD, which had become chronic, with moderate to severe depression.
136. On the balance of probabilities, he thought the plaintiff's condition was a direct result of the plaintiff's action and the plaintiff believed he would be killed when the shutters went up and the gun was fired. He thought the plaintiff required ongoing counselling and was cautious as to whether he would recover fully. He thought his capacity to work limited.
137. In evidence given by telephone link-up, Mr Mueller opined there had been no real change in the plaintiff's condition from his last reporting in March 2015 to July 2015 when he gave evidence and that his condition was chronic, but tended to wax and wane. In crossexamination he was asked about pre-existing stressors on the plaintiff, and he thought one of the major ones was the breakdown of his marriage and custody of the children.
138. He was aware the MercedesBenz dealership was operating at a loss, but did not recall the plaintiff telling him he had applied to buy the business and had been knocked back. He was aware the business had been sold against the plaintiff's wishes. Mr Parsons thought other factors impacting on the plaintiff's psychological problems were the financial problems in the dealership and the relationship with his wife and his present partner. However, in his view, the psychological problems from the hold-up were of the most significance.
139. Dr Saboisky is a consultant psychiatrist who saw the plaintiff for medicolegal purposes and prepared reports dated 28 February 2011, 4 September 2013 and 30 March 2015. He also gave evidence. He recorded a history of the injury on 1 February 2010 in accordance with the statement which the plaintiff had given to police. He noted the plaintiff had worked in a MercedesBenz dealership which had initially done well, but because of the plaintiff's symptomatology after the robbery and financial problems the business declined and the business was sold.
140. He recorded details of the treatment the plaintiff had been afforded both by psychiatrists and psychologists and that he had been prescribed medication. In relation to past events, he noted the plaintiff had seen a psychologist at a prior time, prior to relationship breakup. He diagnosed the plaintiff to suffer chronic posttraumatic stress disorder and expressed no disagreement with the plaintiff's treating doctors.
141. He thought the plaintiff's prognosis guarded and was of the view that any PTSD which remained for more than 12 months had the potential to continue. He thought there to be a clearcut causal relationship between the plaintiff's condition and the armed hold-up. At first assessment he did not think the plaintiff fit to function in the workplace given his ongoing psychological symptomatology and thought it impossible to predict how long that would continue.
142. In his second reporting, he noted the plaintiff had not returned to work and had told him he felt tired and lethargic, with no enthusiasm and he felt that his symptoms would make it difficult for him to cope in a workplace. He considered him still to suffer from depression and PTSD and thought the disabilities consistent with the incident described and thought the plaintiff to continue to require psychological treatment. He thought it unlikely there would be a deterioration and thought the injury had stabilised.
143. He did not believe the plaintiff could work successfully at his pre-injury work because of his symptomatology but with appropriate rehabilitation could do some part-time work. He noted, however, the plaintiff had no motivation to return to work and thought it likely he would remain so until his compensation matter was finalised.
144. In final reporting he thought him to continue to require psychological treatment and thought the medico-legal process had been stressful to him. He noted the plaintiff did not believe he had any real capacity for his pre-injury work. Dr Saboisky was of the view he was capable of doing some part-time nonstressful work.
145. Dr Brown, a psychiatrist, examined the plaintiff on behalf of the defendant and his reports of 11 May 2011 and 31 March 2014 were tendered. He also gave evidence. He obtained a history of the events of 1 February 2010, largely in accordance with the plaintiff's evidence. He noted the plaintiff had seen a number of psychologists and psychiatrists for treatment and had been prescribed medication. He recorded the plaintiff had been retrenched as his business partner had sold the business and the new company did not want him and that he had no current plans for work.
146. He noted the plaintiff had seen a psychologist in 2009 in respect of the breakup with his partner but had not been off work nor been prescribed medication. In his opinion the plaintiff suffered PTSD as a result of threats to his life in the robbery and he did not doubt the plaintiff experienced significant psychological problems as a reaction to the armed hold-up. He thought the PTSD had subsided to a mild degree and thought the plaintiff able to return to work in a full time suitable occupation, probably in car dealerships in Sydney, even if not with Mercedes Benz.
147. He noted the plaintiff able to look after his children and he thought the PTSD symptoms would abate over time. He agreed the plaintiff should continue with psychological treatment, albeit on a gradual phasing out process, but he thought medication should continue.
148. In his initial report he thought a year of review sessions with a psychiatrist appropriate, together with medication. In his second report he noted continuation of treatment and that the plaintiff had told him he wanted to return to work but had no idea what to do and no motivation to do so. He opined the plaintiff to have residual symptoms of PTSD of a mild degree and also an adjustment disorder with reactive depression of a mild degree. He thought treatment appropriate and he remained of the view a year of monthly review with his psychiatrist, 10 sessions with a psychologist and a year's supply of medication appropriate.
149. He thought, on resolution of the claim, that the plaintiff's drive and ability previously displayed should render him capable of returning to work. He thought the PTSD and associated reactive depression had not abated as that was sustained by his significant unresolved anger and until that resolved he would continue to experience significant psychological problems.
150. In evidence it appears the plaintiff had not told Dr Brown of his GST liability or that the business had been running at a loss prior to the robbery. Dr Brown opined that had he been advised of those matters he would have questioned the plaintiff in respect of financial stress and considered if that was relevant to his condition.
151. The defendant submits the plaintiff did not give reliable histories to his treating doctors in that he failed to report on other issues in his life and says clearly those issues are relevant to his psychiatric illness. As previously noted, there were other stresses in the plaintiff's life, including his failure to lodge tax returns, the outstanding GST account, the sale of the business and also his personal problems with his ex-partner and access to his children. He did not disclose that he had engaged in speculative share trading and had lost money in that regard.
152. It does not seem to me that he is motivated to seek employment of any kind at the present time, feeling that he should only resume employment of the kind in which he was engaged prior to the robbery. It seems that the plaintiff had returned to work after the robbery for a short period of time on limited hours but did then resume work until the business was sold.
153. On all the medical evidence I am satisfied the plaintiff suffered depression and more important, PTSD, as a result of the events of 1 February 2010 and that he has required and has been receiving medical treatment for those conditions since that time from qualified practitioners and, indeed, I am satisfied that he is continuing to receive extremely appropriate treatment. Whilst I accept the plaintiff to have had other events in his business and personal life which caused him problems, I am of the opinion that prior to February 2010 he was quite able to function adequately and to manage both his business and personal life without the need to seek psychological help even though he had those difficulties.
154. His treating doctors and psychologists are supportive of him and they are clear in their opinion that he requires ongoing treatment, at least in the foreseeable future, and they express some caution as to his future prognosis.
155. I am of the opinion that a graduated return to work with the assistance of his treating practitioners would be appropriate in the future and for him to work in employment which would not expose him to handling large amounts of money if he continues to remain fearful of future hold-up events.
157. The defendant assesses this claim at between $70,000 to $90,000.
158. The defendant submits that there are two components of the injuries; depression and PTSD, and says on the evidence the plaintiff would have suffered PTSD from the fact of the robbery itself, let alone the fact of the security screens being activated and the plaintiff's belief he had been shot.
159. In respect of depression the defendant says this was multifactorial, not only resulting from robbery events but also from other events in his life, such as the custody arrangement for his children, his tax and GST debts and his financial position, and also his speculative share dealings.
160. The defendant says the plaintiff could return to work but has no incentive to do so and his medical condition will alleviate to a large extent within a fairly short compass of time.
161. The plaintiff submits he clearly has a significant depressive illness as a result of the injury as well as PTSD and I refer to my prior comments in relation to my feelings as to his medical condition. It is clear the plaintiff functioned well without the need for medical treatment or counselling prior to 1 February 2010 and since that time he has required extensive medical treatment from a psychiatrist and also from a psychologist and his condition has become chronic.
162. In assessing non-economic loss I accept the plaintiff to be a witness of credit and I accept him to have the continuing problems of depression and PTSD since 1 February 2010 and I am prepared to assess his non-economic loss in the sum of $150,000 and I would award interest at two per cent on half of that amount.
163. These are supposedly agreed in the sum of $94,013.73, however, I note the defendant's schedule assesses this in the sum of $91,369.08. I make no further comment in relation to those expenses.
164. The plaintiff assesses these at $202,965.52. The defendant assesses this head of damages at $6,580 or alternatively, $38,540.
165. The plaintiff bases his assessment on the basis he sees Dr Chung and Mr Mueller on a fortnightly basis and takes antidepressant medication twice daily. It is submitted this regime will continue for at least the next 10 years when he may be able to resume part-time work and his attendance will reduce to about half his current level.
166. The plaintiff is currently 45 years of age and has a life expectancy of 40.32 years.
167. The defendant's primary submission is that the plaintiff requires one further year of psychiatric and psychological treatment, as noted by Dr Brown, with associated medication and thus using a costing of $335 per psychiatric visit and $220 per psychologist visit, plus $360 per annum for medication, the costs for one year are $8,580.
168. The defendant's secondary position, on the basis of Dr Saboisky's reporting, is the plaintiff's need for psychiatric and psychological care will diminish after conclusion of litigation, and it is reasonable to conclude that by 2019 the plaintiff will not require further therapy and thus assesses the sum of $38,580. The defendant's schedule, however, appears to assess the costing from 1 April 2016 to 1 April 2021, which is in fact some five and a half years and is totalled at $38,540. That does not reconcile.
169. On the medical evidence before me, as I have said, it is clear that the plaintiff will require psychiatric and psychological treatment for a reasonably lengthy period of time as his condition appears to have become entrenched. It also seems his symptoms may abate to a degree on conclusion of litigation.
170. Given his age and the uncertainty of prognosis, I accept him to require treatment in the foreseeable future, both with a psychiatrist and with a psychologist and to require medication at a lessening level into the future. I believe the plaintiff's assessment of his future needs to be somewhat excessive but I am prepared to assess his future out of pocket expenses by way of a buffer in the sum of $65,000.
171. The plaintiff assesses this at $800,364.50 with interest on the unpaid component of past economic loss at $46,494.40. This is based on compensation payments made by reimbursement to the employer from February 2010 to the end of August 2010 of $99,514.50 net and average weekly earnings in the 2010 financial year of $2,675 net per week from September 2010 to date being 262 weeks, ($700,850 net), and interest calculated at four per cent on $211,333.20 for five and a half years.
172. The defendant calculates past economic loss on four alternate propositions. The primary position is that the plaintiff was incapacitated for two weeks following the robbery and any inability to work arises from his depression and not from PTSD, and the depression is a multifactorial illness and cannot be attributed to the defendant's negligence.
174. The Plaintiff has been receiving treatment for PTSD and depression since the robbery. He was clearly unfit. He has seen treating practitioners.
175. The defendant's second alternate proposition is that he was under no incapacity to work after March or April 2010 and the reason he did not work was because he was receiving money from Capital Star Motors until the business was sold and then workers compensation payments.
176. There is no medical or other evidence that the plaintiff's depression arose as a result of the sale of Capital Star and the plaintiff's failure to secure finance to buy out his partners.
178. The third proposition is that any incapacity resolved after two years. The basis for that proposition is that the plaintiff moved to Sydney and attended to the shared custodial arrangements for his children. He also needed to set up house in a situation where his now partner, was not with him and the difficulties he experienced in setting up a house and routine for his children. The evidence does not support that proposition either.
179. The fourth proposition is that if I find the plaintiff to have been and remain incapacitated, which I do, the defendant submits the plaintiff's incapacity to work will resolve following the conclusion of litigation and he will be able to return to work say by 1 September 2017 and work to the level of earning comparable to his pre-Capital Star Motors employment within one year.
180. The defendant contends the plaintiff's competence and skills were as a salesman and not as a dealer/principal and assesses his past loss at $125,785, (that is $71,000 net per annum less workers compensation payments of $47,842.86 per annum) and past superannuation at $13,836.
181. Having reviewed all of the material I am prepared to accept the assessment made by the plaintiff as being realistic and I accept the plaintiff's assessment in respect of his past economic loss.
182. I, therefore, assess the sum of $800,364.54, together with interest in the sum of $46,494.40.
183. I also find the past loss superannuation in the sum of $88,040.10, calculated at 11 per cent of net wage.
184. The plaintiff assesses this at $1,608,890, together with the future loss of superannuation at $176,977.90. This loss is calculated on an assumption that the plaintiff is able to return to part-time work in 10 years and a reasonable reflection of his earnings would be $1,128 gross or $903 net per week. The claim is, therefore, as summarised in the plaintiff's schedule. A 15 per cent reduction is applied for vicissitudes.
185. The defendant says the plaintiff will be able to work following the conclusion of litigation, say within two years, and work up to the level of his pre-Capital Star Motors employment within one year and thus, assesses the future loss at $76,365 and superannuation at $8399, being $73,000 net per annum less workers compensation of $47,842.86 net for two years, then $26,044 per annum for one year, ($73,000, minus $46,965 being average weekly earnings.)
186. At Capital Star Motors the plaintiff's earnings seem to be agreed at $2675 per week, and I look at both schedules for that figure, and whilst the defendant says this figure is not one to use to assess the plaintiff's loss as the business was to be sold, it seems to me to be a good starting point for comparisons.
187. As a salesman at Tynan's in 2010-2012 I am advised average income was $71,000 net per annum.
188. It seems the plaintiff did initially attempt to find work. He attended a vocational assessment centre which assessed in October 2012 he may be able to work in clerical and administration sales on a gradual return to work but not in an area in which safety issues may be of concern.
189. He has no formal qualifications. He completed year 10 at school. A motor vehicle salesman's wage estimate in 2011 was $1166 gross per week or $932 net per week and a fleet manager was $1437 gross per week or $1,110 net per week. I do not think it likely, on the balance of probabilities, that the plaintiff can return to employment as a principal dealer in a motor vehicle business, principally in regard to his money mismanagement problems in the past. Clearly his forte is as a salesman and people manager.
190. I am, therefore, satisfied he will have an economic loss. On the material provided I am of the opinion his likely earnings are negligible for at least the next two years, noting his requirement for continuing treatment to a reasonably high level in the future.
191. After that period of time I am satisfied for a period of two years into the future, on a graduated return to work, perhaps as a motor vehicle salesman and then fleet manager, he will be able to earn in the vicinity of $930 per week rising to $1100 net per week to the retirement age of 65. To those figures should be applied a 15 per cent deduction for vicissitudes. I have not calculated this sum nor that of future superannuation, which would be assessed at 11 per cent, as I do not feel it realistic to make that calculation in relation to this exercise at this time.
192. The defendant's scheduled assesses this at $1,198,900. The plaintiff's schedule assesses this at $211,338.20. It is unclear to me why there is a discrepancy in this figure, and I make no further comment in that regard.
194. Plaintiff to pay the defendants costs subject to any variation application by the defendant being made by 17 December 2015.
I certify that the preceding one hundred and ninety four [194] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ashford
Roberts
Westpac Banking Corporation [2015] ACTSC 397
(2000) 205 CLR 254
(2001) 207 CLR 562